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2016 DIGILAW 853 (PAT)

Radhika Devi v. State of Bihar

2016-07-11

BIRENDRA PRASAD VERMA

body2016
JUDGMENT : Heard the learned counsel appearing on behalf of the petitioners and the learned AC to G.P. 12 appearing on behalf of the respondent no. 1 to 5. However, none appears on behalf of the private respondents despite issuance of notice to them by order dated 25.09.2013 and again by the order dated 12.10.2015. 2. The petitioners are aggrieved by the order dated 17.01.2008 passed in Consolidation Revision Case No. 16 of 2001 by the respondent Joint Director of Consolidation, Muzaffarpur, as contained in Annexure-2 to the writ petition, whereby the aforesaid revision application filed on behalf of the petitioners under Section 35 of The Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (In short ‘Consolidation Act’) has been dismissed and the order dated 02.03.2001 (Annexure-1) passed by the appellate authority has been affirmed. The petitioners are also aggrieved by the appellate order dated 02.03.2001 passed in Consolidation Appeal No. 486 of 1982 by the respondent Deputy Director of Consolidation, Muzaffarpur in exercise of his powers under Section 10(6) of the Consolidation Act, whereby the aforesaid appeal filed on behalf of the private respondents or their predecessor has been allowed by a reasoned and speaking order, and the order dated 10.11.1978 passed by the Consolidation Officer, Kurhani in Consolidation Case No. 599 of 1977 has been reversed and set aside. 3. The disputes in the present proceeding relate with respect to parcels of land bearing plot no. 3033 area 13 decimals, plot no. 3036 area 24 decimals and plot no. 3069 area 41 decimals, which have been carved out from old khesra no. 2227 appertaining to old khata no. 36, total area being 1 acre 2 decimals. 4. The learned counsel appearing on behalf of the petitioners submits that the lands in question was earlier recorded in the cadastral survey record in the name of one Chaturi Mahto and the petitioners are the descendants of aforesaid Chaturi Mahto. He further submitted that in the consolidation proceeding the lands in question was recorded in the name of one Samir Sah son of Dilip Kumar Sahu (not impleaded as a party respondent in the present proceeding). Therefore, Objection Case No. 599 of 1977 was filed on behalf of the petitioners, which was finally allowed by order dated 10.11.1978. He further submitted that in the consolidation proceeding the lands in question was recorded in the name of one Samir Sah son of Dilip Kumar Sahu (not impleaded as a party respondent in the present proceeding). Therefore, Objection Case No. 599 of 1977 was filed on behalf of the petitioners, which was finally allowed by order dated 10.11.1978. According to him, the appellate authority without considering the matter in its proper perspective has reversed and set aside the aforesaid order dated 10.11.1978 by the impugned appellate order dated 02.03.2001 (Annexure-1) and directed for recording the name of the private respondents with respect to the lands in question. He next contended that the revisional authority has also not considered the case of the petitioners in its proper perspective and has dismissed the revision case filed on their behalf by the impugned revisional order dated 17.01.2008 (Annexure-2). According to him, both, the appellate order and the revisional order, as contained in Annexure-1 and 2, are fit to be set aside and the original order passed by the Consolidation Officer on 10.11.1978 is fit to be affirmed. 5. Per contra, the learned State counsel appearing on behalf of the official respondents, submits that the claims of the petitioners with respect to the lands in question have been rejected by the appellate authority as also the revisional authority by considering the case of the parties at great length. He further submitted that before passing the order dated 10.11.1978 by the Consolidation Officer, Kurhani, (District Muzaffarpur) in favour of the petitioners, which has been brought on record as Annexure-16 to the supplementary affidavit filed on behalf of the petitioners, opportunity of hearing was not given to the private respondents, and in that case only one Samir Sah was impleaded as opposite party, but aforesaid Samir Sah has not been impleaded as party respondent in the present proceeding. Therefore, according to him, the aforesaid order dated 10.11.1978 was rightly set aside and reversed by the appellate authority by order as contained in Annexure-1, which has been affirmed by the revisional authority by the order as contained in Annexure-2. Therefore, according to him, the aforesaid order dated 10.11.1978 was rightly set aside and reversed by the appellate authority by order as contained in Annexure-1, which has been affirmed by the revisional authority by the order as contained in Annexure-2. By referring to the findings recorded by the aforesaid two authorities, he next submitted that the lands in question was auction sold on 21.07.1900 in Execution Case No. 218 of 1900 and one Surjan Bibi purchased the lands in question and thereafter, Chaturi Mahto, the ancestor of the petitioners ceased to have right, title and possession over the lands in question. It is pleaded by him that the disputed question of facts raised on behalf of the petitioners with respect to the lands in question cannot be gone into in a proceeding under Article 226 of the Constitution of India. Hence, the writ petition is fit to be dismissed. 6. After having heard the parties and on consideration of the materials available on the record, this Court finds that by recording concurrent findings of facts by the appellate authority as also the revisional authority vide the orders, as contained in Annexure-2 and 1 respectively, the claims of the petitioners with respect to the lands in question have been rejected. Admittedly, before passing the order dated 10.11.1978 by the Consolidation Officer, Kurhani, opportunity of hearing was not given to the private respondents, as only one Samir Sah was impleaded as the opposite party in that case. In the present case, the aforesaid Samir Sah has not been impleaded as party respondent. Apart from merit, the writ petition suffers from non-joinder of necessary party. The claims raised on behalf of the petitioners with respect to the lands in question are based on disputed question of facts, which cannot be effectively gone into in the present proceeding filed under Article 226 of the Constitution of India. 7. For the reasons recorded above, the writ petition has to fail and is, accordingly, dismissed. However, once the notification under Section 26A of the Consolidation Act is issued by the State Government, closing the consolidation operation in the unit, the petitioners or any other aggrieved party would be at liberty to approach the civil court of competent jurisdiction for getting their right, title and possession declared over the lands in question. In the facts and circumstances of the case, the parties shall bear their own costs.